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2017 DIGILAW 1179 (ALL)

HARMAYA v. STATE OF U. P.

2017-05-03

SUNITA AGARWAL

body2017
JUDGMENT : Sunita Agarwal, J. Heard Sri Shailendra Nath Tiwari learned counsel for the petitioner, Sri Rahul Sahai learned counsel for the respondent no. 5 and learned Standing Counsel appears for respondent nos. 1 to 4. 2. This writ petition is directed against the order dated 13.12.2016 passed by the Prescribed Authority/the Sub-Divisional Officer, Tehsil Gunnaur, District Sambhal in an election petition filed under Section 12-C of U.P. Panchayat Raj Act, 1947 (hereinafter referred to as the 'Act 1947') whereby recounting of votes in the election held in the year 2015 of Gram Pradhan of Gram Mehuaa Hasanganj, Block and Tehsil Gunnaur, District Sambhal has been ordered. The petitioner and respondent nos. 5 and 6 were the candidates who contested the election to the office of Gram Pradhan, Village Panchayat Mehuaa Hasanganj, Block and Tehsil Gunnaur, District Sambhal. Polling took place on 5.12.2015. 3. Respondent no. 5 Smt. Ramwati preferred an election petition under Section 12-C of the Act stating therein that there were four Polling Booths numbered as Booth Nos. 1, 2, 3 and 4. 4. The votes polled booth-wise are as under :- (i) Booth No. 1-647 (ii) Booth No. 2-828 (iii) Booth No. 3-557 (iv) Booth No. 4-504. Counting took place on 13.12.2015. The election petitioner was present at the place of counting. However, she was shifted outside whereas her son Dharmveer was present at the counting table. 5. It is further contended that one Awadhesh son of Vijendra Singh who was assisting the Election Officer in the counting was related to the Returned candidate. This fact came to the knowledge of the election petitioner during the course of counting. The ballot box of booth no. 1 was opened at about 9:30 AM without showing the same to the agents of the contesting candidates. On an objection raised by the election petitioner's agent namely Sri Dharamveer, he was refused to show the seal of the ballot box. Invalid ballot papers were counted in the number of votes counted for the Returned candidate, whereas the ballot papers having votes in favour of the election petitioner were declared invalid without showing it to the agent of the election petitioner. When her agent raised his voice, he was threatened by the agent of the Returned candidate. The counting was done in connivance with the Returning Officer who was out and out to help the Returned candidate. When her agent raised his voice, he was threatened by the agent of the Returned candidate. The counting was done in connivance with the Returning Officer who was out and out to help the Returned candidate. There is no dispute with regard to the number of votes polled at every booth. 6. The election petitioner further states that her agent was informed that she won the election so she left home to reach where counting was done. However, when reached at the place of counting, she was told that the Returned candidate had won the election by margin of six votes. The election petitioner immediately raised a dispute before the Returning Officer and requested him not to declare the result and for recount but her request was not heeded by the Returning Officer, hence the election petitioner had no option but to file the election petition. The written statement was filed by the Returned candidate with the assertion that the agents of three contesting candidates were present at the place of counting. The allegation in the election petition is that Awadhesh Kumar, the assistant to the Returning Officer or the Returning Officer being related to the Returned candidate were denied. There was no irregularity in counting and declaration of result. Before the Prescribed Authority, the election petitioner and her agent Dharmveer had appeared and recorded their statement. The agent of election petitioner namely Dharamveer was also cross examined by the Returned candidate namely petitioner herein. The election tribunal after hearing the parties, by means of the order impugned has directed for recounting and fixed 17.12.2016 for the said purpose. The petitioner filed a revision against the order dated 13.12.2016 which was numbered as Revision No. 51 of 2016. 7. During the pendency of the said revision, the petitioner has filed a Writ Petition No. 59413 of 2016 (Smt. Harmaya v. State of U.P. and 6 others), which was dismissed as withdrawn on the request made by her vide order dated 17.12.2016 passed by this Court. The revision filed by the petitioner was dismissed as non-maintainable on 14.2.2017. A petition under Article 227 of the Constitution of India had been filed which was dismissed as withdrawn being not maintainable with liberty to file a fresh petition against the order of recount. 8. At the very outset, Sri Rahul Sahai, learned counsel for the respondent no. The revision filed by the petitioner was dismissed as non-maintainable on 14.2.2017. A petition under Article 227 of the Constitution of India had been filed which was dismissed as withdrawn being not maintainable with liberty to file a fresh petition against the order of recount. 8. At the very outset, Sri Rahul Sahai, learned counsel for the respondent no. 5 submits that the present petition is a second petition filed for the same relief. As the earlier petition had been withdrawn by the petitioner without any liberty having been granted by this Court, the second writ petition for the same relief cannot be entertained, only remedy left before the petitioner was to challenge the revisional order. 9. Dealing with this submission of the respondents, suffice it to say that earlier petition challenging the order of recount filed by the petitioner was dismissed as withdrawn with the observations in the order dated 17.12.2016 passed by this Court that the revision against the order of recount had been filed wherein interim stay had been granted. The request for withdrawal of the writ petition was made in view of the pendency of the revision though it was not maintainable. 10. The contention of learned counsel for the respondent that the petitioner himself choose to avail a wrong remedy and withdrew the earlier writ petition as such she cannot be granted liberty to maintain the present writ petition, is not acceptable for the reason that against the order of recount passed by the Prescribed Authority in an election petition, only a writ petition would lie as per the law laid down by this Court in the case of Amit Narain Rai v. State of U.P. reported in 2012 (5) ADJ 716 . 11. It appears that neither the counsel for the petitioner was aware of the said judgment nor this Court had taken note of the legal position before passing the order of withdrawal. More so, in case, the arguments of learned counsel for the respondent are accepted, the petitioner would be non-suited without getting the chance to challenge the order of recount on merits. 12. This court, therefore, proceeded to hear the counsel for the parties on the merits of the order of recount passed by the election tribunal. 13. More so, in case, the arguments of learned counsel for the respondent are accepted, the petitioner would be non-suited without getting the chance to challenge the order of recount on merits. 12. This court, therefore, proceeded to hear the counsel for the parties on the merits of the order of recount passed by the election tribunal. 13. Sri Shailendra Nath Tiwari, learned counsel for the petitioner contended that the order of recounting of votes could not have been passed in a casual manner as it effects very concept of secrecy of votes. 14. The averments in the election petition were vague. In her statement the respondent no. 5 admitted the number of votes polled in favour of election petitioner and the writ petitioner. There was no difference between the number of votes counted in favour of each candidate as deposed by the writ petitioner. The allegations of irregularity at the time of recounting as per the deposition of the election petitioner and her agent are vague. No satisfaction has been recorded by the election tribunal before passing the order of recount. Only observation made therein are that the purity of the election had been comprised and, therefore, recounting was required. 15. Reliance is placed upon the judgments of Apex Court in the case of Rekha Rana (Smt.) v. Jaipal Sharma and others reported in 2009 (17) Supreme Court Cases 115 and Fulena Singh v. Vijay Kumar Sinha and others reported in 2009 (5) Supreme Court Cases 290. 16. On the other hand, Sri Rahul Sahai learned counsel for the respondent/election petitioner referring to the statement of the agent recorded in examination-in-chief and cross-examination submits that the allegations of irregularities at the time of recounting were serious such as 144 rejected ballot papers were not shown to him, he was overpowered by the person who was assisting the Returning Officer in counting of votes. The marking in the ballot papers were not visible as they were not shown to him. 17. He submits that in the election petition itself, specific allegations of irregularities in the counting process were pointed out which were supported by the evidence of agent of the election petitioner. The election tribunal considering the pleadings and the evidence on record rightly came to the conclusion that recounting was required in the facts and circumstances of the case. 17. He submits that in the election petition itself, specific allegations of irregularities in the counting process were pointed out which were supported by the evidence of agent of the election petitioner. The election tribunal considering the pleadings and the evidence on record rightly came to the conclusion that recounting was required in the facts and circumstances of the case. It cannot be said to be a case where there was no material supported by evidence so as to warrant an order of inspection. The order of recounting cannot be said to be only on the suspicion of the election petitioner or her belief that there has been an improper acceptance, refusal or rejection of votes. 18. Reliance is placed upon the judgment of this Court in the case of Pawan Singh v. Presiding Officer/Sub Divisional Magistrate, Kunda and others reported in 2015 (33) LCD 1975 to submit that in a case where the Prescribed Authority considering the pleadings and evidence adduced by the election petitioner and the Return candidate has found that prima facie ground for inferring that on account of certain irregularities, the result of election has been materially affected, the order of recount cannot be said to be roving enquiry by the tribunal so as to fish out material for declaring the election to be bad. 19. The satisfaction recorded by the election tribunal is based on the evidence on record. 20. Referring to paragraph 9' of the judgment of this Court in Rajneesh v. State of U.P. and others reported in 2011 (29) LCD 2227, it is submitted that justice cannot be crucified at the altar of stability of the election process. The rampant corruption of the officers and their lack of integrity cannot be ignored by the Court on the ground that recounting will amount to bringing instability in the election system. 21. Referring to another judgment in the case of Malti Singh v. Sub Divisional Officer, Sadar/Prescribed Authority, Hardoi and others reported in 2012 (30) LCD 2595 , it is submitted that considering the narrow margin of votes and the allegations made in the election petition, this Court had refused to interfere in the order of the Prescribed Authority of recounting of votes. 22. The question which fell for consideration is that whether the pleadings and evidence in the election petition justifies the order of recount. 23. 22. The question which fell for consideration is that whether the pleadings and evidence in the election petition justifies the order of recount. 23. Before coming to the rival submissions of learned counsel for the parties, it would be apt to go through the legal position as to the grounds on which the election of Gram Pradhan can be challenged and the relevant rules pertaining to election of Gram Pradhan. 24. Section 12-C (1) provides the ground on which election can be challenged:- (a) the election has not been a free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election, or (b) that the result of the election has been materially affected - (i) by the improper acceptance or rejection of any nomination or; (ii) by gross failure to comply with the provisions of this Act or the rules framed thereunder." Sub-section (2) of Section 12-C provides as to what constitute "corrupt practices of bribery" or "undue influence" for the purposes of subsection (1) of Section 12-C. Sub-section (3) of Section 12-C provides that an election petition shall contain such particulars as may be prescribed. 25. The procedure for filing of the election petition has been prescribed in Uttar Pradesh Panchyat Raj (Settlement of Election Disputes) Rules, 1994. The procedure for holding election of Gram Pradhan has been provided in Uttar Pradesh Panchayat Raj (Election of Members, Pradhans and Up-Pradhans) Rules, 1994. 26. Rule 30 of Uttar Pradesh Panchayat Raj (Election of Members, Pradhans and Up-Pradhans) Rules, 1994 prescribes for preparation of ballot papers; Rule 40 prescribes for sealing of ballot boxes; Rule 48 prescribes for as to who are the person who can be present at the counting. It says that the Returning Officer would not allow any person to be present at the counting of votes except such persons as may be appointed by him to assist him in counting and further the contesting candidates, his Nirvachan Abhikarta (Polling Agent) and his Ganana Abhikarta (Counting Agent). 27. For the purpose of counting, the procedure is prescribed in Rules 49 to 54. Rule 55 provides for declaration of result by the Returning Officer. Rule 49 is relevant for the purpose of this case and is reproduced as under :- "49. 27. For the purpose of counting, the procedure is prescribed in Rules 49 to 54. Rule 55 provides for declaration of result by the Returning Officer. Rule 49 is relevant for the purpose of this case and is reproduced as under :- "49. Procedure at the counting:- On the date and at the time and place appointed under Rule 46 the Nirvachan Adhikari shall proceed as follows : (a) The Nirvachan Adhikari shall satisfy himself that all the ballot boxes used at the poll and which are to be counted at that place have been received and accounted for. (b) The Nirvachan Adhikari shall then allow the candidates and their Nirvachan Abhikarta and Ganana Abhikartas present at the counting an opportunity to inspect the ballot boxes and the seals for satisfying themselves that they are in order. (c) The Nirvachan Adhikari shall also satisfy himself that none of the boxes has in fact been tempered with. If any ballot box is found by him to have been tampered with or destroyed or lost, the Nirvachan Adhikari shall not proceed with the counting of votes and the provisions of Rule 45 shall apply. (d) If the Nirvachan Adhikari is satisfied that all such ballot boxes are as to be counted at such place have been received and are in order, he shall take up the counting of ballot papers contained in the ballot boxes. All the ballot boxes used at the polling place shall be opened, and the counting of the ballot paper found in those boxes proceeded with in accordance with the instruction in the State Election Commission at the same time. (e) An account of the ballot papers found in the boxes of the polling place shall be recorded in a statement in the form specified by the State Election Commission. (f) The Nirvachan Adhikari shall allow the candidates, their Nirvachan Abhikartas and Ganana Abhikartas, who may be present, reasonable opportunity to inspect all ballot papers which in the opinion of the Nirvachan Adhikari are liable to be rejected, but shall not allow them to handle these or any other paper. The Nirvachan Adhikari shall on every ballot paper which is rejected endorse rejection in Hindi Devanagri script. The Nirvachan Adhikari shall on every ballot paper which is rejected endorse rejection in Hindi Devanagri script. If any candidate or his Nirvachan Abhikarta questions the correctness of the rejection of any ballot paper, the Nirvachan Adhikari shall also record briefly on such ballot paper, the reasons for his rejection. (g) After the counting of all ballot papers contained in the ballot boxes of the polling place has been complete the Nirvachan Adhikari shall cause all such ballot papers to be kept in a separate packet on which shall be indicated such particulars as will identify the polling place, the name of the Gram Panchayat and the constituency to which the ballot papers relate." 28. Rules 56 and 57, however, provides the election papers i.e. the packet of ballot papers, whether valid, rejected and marked copy of the electoral roll shall be kept under sealed cover for safe custody by the Assistant District Election Officer (Panchayat and Local Bodies). These documents shall not be opened and their contents shall not be inspected or produced before any person or authority except under the order of a competent court hearing an election petition. 29. Sub-rule (2) of Rule 57 says that all other papers relating to the election shall be opened to public inspection. Thus the secrecy of election is to be maintained and the seal of the election papers can only be broken under an order of the competent court. 30. So far as the principles for ordering inspection of ballot papers, the Apex Court in the case of Bhabhi v. Sheo Govind and others reported in 1976 (1) Supreme Court Cases 687 has held in paragraph 15' as under :- 15. (1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations; (2) That before inspection is allowed, the allocations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts; (3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount; (4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties;" 31. The same principles have been followed in M.R. Gopalakrishnan v. Thachady Prabhakaran and others reported in 1995 Supp (2) Supreme Court Cases 101. 32. In Satyanarain Dudhani v. Uday Kumar Singh reported in 1993 Supp (2) Supreme Court Cases 82, the Apex Court again reiterated the similar view by observing that the secrecy of the ballot papers cannot be permitted to be tinkered lightly. An order of recount cannot be granted as a matter of course. It is only in a case where the Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the recount can be ordered. 33. In Vadivelu v. Sundaram and others reported in 2000 (8) Supreme Court Cases 355, it is reiterated that recount of votes could be ordered very rarely and on a specific allegation of the pleadings in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks recount should allege and to prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the Court is satisfied about the truthfulness of the above allegations, it can order recount of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by mere allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to recount of votes under such circumstances to do justice between the parties. 34. In Rekha Rana (supra), it has been held that the purity of election and secrecy of ballot papers are two competing principles. Secrecy of ballot principle pre-supposes a validly cast vote, the sanctity and sacrosanct of which must in all events be preserved. But in the name of secrecy, the purity of election cannot be compromised. Whenever a situation arises before the Court to choose between the two competing principles, purity of elections principle must have its way and the rule of secrecy cannot be pressed into service to suppress a wrong coming to light and to protect a fraud on the election process. 35. The above-noted principles have been laid down by the Apex court in the context of the Representation of People Act. 35. The above-noted principles have been laid down by the Apex court in the context of the Representation of People Act. A question came up before the Full Bench of this court in Ram Adhar Singh v. District Judge and others reported in 1985 AWC 246, whether these principles can be pressed in a summery proceeding under Section 12-C of U.P. Panchayat Raj Act wherein it shall not be necessary for the Sub-Divisional Officer (the authority competent) to record evidence in full and the affidavits are only filed in evidence. While giving its answer, it has been held by this Court that the hearing of the election petition under Section 12-C (1) of the Act is a summery procedure has no bearing on the question regarding circumstances in which the ballot papers can be looked into or permitted to be inspected. 36. This Court has observed :- "Neither of the two enactments countenances the court or the authority to permit the election Petitioner to make or indulge into making of a roving enquiry with a view to fish out material for declaring an election void; and it is this weighty factor which impels the court or the authority not to look into or permit inspection of ballot papers unless the foundation for the purpose has been properly laid in the petition by specifying the ground and the material or the circumstances in support of such ground." 37. It has further been held that the principles with regard to inspection of ballot papers enunciated by the Apex Court in cases arising under the Representation of the People Act to an election petition would be applicable in an election petition dealt with under the provisions of U.P. Panchayat Raj Act. 38. It has further been held that the principles with regard to inspection of ballot papers enunciated by the Apex Court in cases arising under the Representation of the People Act to an election petition would be applicable in an election petition dealt with under the provisions of U.P. Panchayat Raj Act. 38. Thus before directing inspection of the ballot papers, the Prescribed Authority is required to keep in mind the following two conditions which must co-exist :- "(1) that the petition for setting aside an election contains the grounds on which the election of the Respondent is being questioned as also the summary of the circumstances alleged to justify the election being questioned on such ground: and (2) the authority is, prima facie, satisfied on the basis of the materials produced before it that there is ground for believing the existence of such ground and that making of such an inspection is imperatively necessary for deciding the dispute and for doing complete justice between the parties." 39. It, therefore, follows that while passing an order of recount, the election tribunal has to record its prima facie satisfaction based on the averments made in and the materials indicated in the election petition about the existence of the ground on which the election is sought to be questioned. The allegation has to be specific and vague and indefinite allegations could not be ground to direct to recount of votes. 40. In the light of the legal position discussed above, pleadings in the instant matter and the material on record, the question survives for adjudication is as to whether the pleadings and material on record justifies the order of recounting. 41. In the election petition, there are specific pleading of irregularities committed by the officers who were present to assist the Returning Officer. The election petitioner and her agent recorded their statement giving specific statement of irregularities in counting of votes. The writ petitioner had cross-examined them. 42. A perusal of the statement-in-chief and cross-examination of the agent of the election petitioner shows that there was no variance in his statement. He has specifically pleaded that he was overpowered by the agent of the Returned candidate and the officers who were present in counting. The writ petitioner had cross-examined them. 42. A perusal of the statement-in-chief and cross-examination of the agent of the election petitioner shows that there was no variance in his statement. He has specifically pleaded that he was overpowered by the agent of the Returned candidate and the officers who were present in counting. They declared the writ petitioner as victorious by counting of wrong votes in her favour and further by rejection of valid votes cast in favour of the election petitioner, 144 votes were rejected without showing ballot papers to the agent of the contesting candidate. The election tribunal while passing the order of recount has recorded that considering the specific averments in the election petition and the evidence in the form of oral statement, a prima facie case for irregularities in counting has been made out. 43. Further looking to the narrow margin of votes (being 6' in number), it was found in the instant case that in order to do full justice between the parties, the recounting was required as prima facie it appears that purity of the election has been comprised. 44. It is not a case where there was no pleading or material on record. The specific allegations of irregularities in counting have been set out in the election petition itself. The statements in the election petition are corroborated from oral evidences of the election petitioner and her representative. The election petitioner specifically named one officer who was assisting the Returning Officer as the person who was involved in the irregularities. His presence in the counting process is not denied. Only this much is sought to be submitted by the writ petitioner that she was no related to her. The specific allegations of the election petitioner are denied in the written statement with the assertion that the counting was done in an impartial manner. 45. Moreover, this Court cannot be ignore the facts that the agent of election petitioner was her son who was studying in M.B.A., he was present in the recounting, his statement regarding the irregularities during counting are clear and categorical. He alleged that he raised his voice but was threatened by the agent of the Returned candidate and the Returning Officer did not pay heed to his request of recounting before declaration of the result. He also stated that a fax message was sent to the Election Commission. He alleged that he raised his voice but was threatened by the agent of the Returned candidate and the Returning Officer did not pay heed to his request of recounting before declaration of the result. He also stated that a fax message was sent to the Election Commission. The narrow margin of votes being 6' in number and assertion that 144 ballot papers have been rejected without showing it to the agent of the election petitioner could not have been ignored by the election tribunal. 46. Considering these facts, this Court finds that two conditions as laid by this court in the case of Ram Adhar Singh (supra) regarding the election petition of containing the specific grounds of challenge and the prima facie satisfaction of election tribunal on the basis of material produced before it are satisfied in the present case. 47. This Court, therefore, does not find any merit in the writ petition so as to warrant interference in the order of recount passed by the election tribunal. 48. The writ petition is found devoid of merits and hence dismissed.